Call Us Now


Part Two – CEP, Local 30 v. Irving Pulp & Paper – Supreme Court Issues Landmark Ruling on Alcohol Testing in Unionized Workplaces

Posted On: January, 21 2015

In the June 2013 decision, CEP Local 30 v. Irving Pulp and Paper, the majority of the Supreme Court of Canada, in an opinion authored by Abella J., allowed the appeal from the New Brunswick Court of Appeal’s decision, but did so in a way that may limit the application of this decision to unionized workplaces only, leaving ambiguity for non-unionized workplaces.

The majority reasoned that the New Brunswick Court of Appeal had not been sufficiently deferential to the labour arbitrator who made the initial ruling, or to the fact that the labour relations community generally had developed a consistent body of jurisprudence on the issue of drug and alcohol testing in unionized workplaces.  In short, the labour relations community, primarily via the decisions of arbitrators, has consistently ruled against random testing policies in virtually all circumstances.

In the majority’s view, the fact that the policy at issue in this case was put forward by the employer under the “management rights” clause of a collective agreement was centrally important.  The Supreme Court ruled that it was an error for the New Brunswick Court of Appeal to issue a decision in the case which did not make the appropriate distinctions between unionized and non-unionized workplaces.  It concluded that the New Brunswick Court of Appeal erred in not viewing this issue through the lens of collective bargaining, and not giving enough deference to the arbitrator.

The majority held, echoing the views of most labour arbitrators, that a unilaterally imposed policy of mandatory random testing for employees in a dangerous workplace is an unjustified affront to the dignity and privacy of employees.  Such testing may only be permissible where there is evidence of enhanced safety risks, such as evidence of a general problem with substance abuse in the workplace.  On the facts in the Irving case, there had only been a handful of alcohol incidents over the past 15 years, and as such it was reasonable for the Arbitration Board to conclude that a random testing program was not justifiable as a BFOR.

The minority, including Chief Justice McLachlan, accepted that the essential framework for this issue was the collective agreement and the labour relations regime.  The minority however, would not have allowed the appeal.  In obiter, the minority also explicitly questioned the wisdom of entrusting the determination of fundamental rules of workplace safety, such as alcohol testing, to unions, employers, and labour arbitrators as a question of collective agreement interpretation.

In finding that the Board of Arbitration had not met the required reasonableness standard, the minority of the Supreme Court accepted that arbitral jurisprudence had consistently ruled against random testing, unless the workplace was inherently dangerous, and unless there was some evidence of an alcohol problem in the workplace.  Where the minority parted company with the Board of Arbitration was on the question of whether the workplace alcohol problem needed to be a “significant” problem or a “serious” problem.  In requiring proof of a “significant” problem, as opposed to merely a “problem,” the Board of Arbitration strayed too far from the arbitral consensus, and its decision was therefore unreasonable.

Take-Away Points

The Supreme Court’s decision in Irving appears to be limited to unionized workplaces.  It does not clarify the conflicting appellate jurisprudence regarding non-unionized workplaces, and does not address drug testing whatsoever – only alcohol testing.

Regarding unionized workplaces, this decision clarifies the law regarding alcohol testing, but not drug testing.  The Court has confirmed that random alcohol testing may be permitted only in certain inherently dangerous workplaces, where there is a “significant” or “serious” problem with alcohol use.  In general, this decision curtails the ability of employers to rely on the management rights clause to implement safety measures without the agreement of the bargaining agent.


Contact Us



  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by SB

    "I just wanted to let you know how happy I am with the outcome and how very grateful I am for the guidance and support that you and your team provided.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Google user

    "Patrick James is really a great lawyer who is smart and great to deal with. He's been our litigation counsel for over 5 years on several different matters. Patrick recently gave our company great strategic advice that resulted in a big commercial litigation win for our company. He's fierce, tenacious, and really cares about getting the best outcome for his clients."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Google user

    "Patrick is a very good lawyer. He recently successfully defended a lawsuit against my company and has pursued several litigation claims for us in the past. All claims settled input favour. Mr. James is smart and quickly gives you great strategic advice. Patrick has been a real asset to our business."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Sandra L.

    "Andrew Wray and Patrick James recently helped settle a difficult situation for me and my family. The results were exactly what we were hoping for. They are honest, strategic and will provide you with the best advice for you and your financial situation. I highly recommend them to everyone I know."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Mark C.

    "Their team is highly focused and incredibly professional - from our experience it would be difficult not to believe that Pinto Wray James are one of Ontario's leading Firms in Labor and Employment law. The mindful client care and complete understanding of the case eased fears and the stress that comes with any legal dispute. Expect to find high level smartly crafted legal solutions at Pinto Wray James LLP - couldn't recommend more."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Sherry C.

    "Patrick is knowledgeable, strategic, supportive, and patient. His guidance and advice helped me to maintain focus and to keep things in perspective. His experience and keen perception provides him with an edge that allows him to assess the situation, the people involved, and to offer a strategic resolution that works best for all involved. If you ever require legal advice and assistance, I highly recommend him and his team. They will be there 100% for you."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Christian V.

    "Patrick is a fearless advocate for diverse clients. His strategic approach, and his empathy, are what set him apart as a litigator, and champion of the underdog."
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by A Google User

    "I have no hesitation recommending Andrew Wray of Pinto Wray James LLP. He provided me with legal advice regarding an employment law issue and his council was practical and honest. Andrew's approach is very much one of blending legal excellence with good common sense. An excellent lawyer!"
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto James Reviewed by Larry S.

    "Patrick listens to his clients and shows compassion, empathy and professionalism. He cares deeply that the individual that has been wrongfully terminated gets the best judgment available to him. I would not hesitate in recommending him to friends or family."